Friday, January 24, 2014

A headline in today's The New York Times declares Attorney General Holder's purported belief that "Legal Marijuana Business Should have Access to Banks." According to the article, which appears here, Holder expressed this opinion in remarks delivered at the University of Virginia's Miller Center. In particular, the article reports that the Department of Justice will soon issue guidance to banks assuring such institutions that they accept deposits from enterprises that sell marijuana in states such as Colorado where many such sales do not violate state law. The article follows a January 11 article, also in the Times, entitled "Banks Say No to Marijuana Money, Legal or Not."

The Times is apparently confused about the meaning of "legal" and the relationship between state and federal law. It's hard to imagine that the Attorney General, a very good lawyer, referred to the sale of marijuana in states such as Colorado as "legal" or referred to enterprises selling such marijuana as "legal businesses." Indeed, despite the headline, the article does not quote the Attorney General as referring to such conduct as "legal" or any synonym thereof.

To be sure, the production, possession and sale of marijuana does not violate the law of Colorado or certain other states in certain circumstances. Moreover, the Department of Justice has declared that, with some exceptions, it will not bring criminal prosecutions against individuals or businesses that possess, purchase or sell marijuana in compliance with state law, so long as the states in question "establish strict regulatory schemes that protect eight federal interests." However, Congress has not repealed the federal ban on the possession and sale of marijuana. In addition, the Supreme Court upheld this ban as within Congress's commerce power less than a decade ago, even though such possession was lawful in the state where the possessors resided. See Gonzales v. Raich, 545 U.S. 1 (2005). Thus, the Administration's refusal to devote scarce resources to the prosecution of relatively minor crimes does not thereby repeal federal law or otherwise render activity inconsistent with federal criminal statutes "legal." Instead, as the memorandum announcing selective non-enforcement explained, the new policy "does not in any way alter the Department's authority to enforce federal law, including laws relating to marijuana, regardless of state law." The memorandum also accurately notes that neither it "nor any state or local law provides a legal defense to any violation of federal law, including [laws banning the possession and sale of marijuana]."

In short, regardless of recent legal developments in states like Colorado, there is no such thing as a "legal marijuana business" in the United States of America. Instead, given the Constitution's Supremacy Clause, both the possession and sale of marijuana remain unlawful in every state and locality of the Union, without regard to state laws that purport to authorize the practice. States cannot preempt otherwise valid federal statutes. As the Supreme Court explained well over a century ago:

"The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State — concurrent as to place and persons, though distinct as to subject-matter." See Claflin v. Houseman,93 U.S. 130, 136-37 (1876) (emphasis added).

Short of repeal of federal statutory law banning the possession and sale of marijuana, one can imagine only one hypothetical scenario in which the Times' description would be partially accurate. As previously explained on this blog, the President is not bound by the Supreme Court's interpretation of the Constitution but must instead exercise his or her independent judgment when discerning the meaning of the document. Thus, a President who disagreed with Raich and believed that the National Government lacks the authority to regulate the purely intrastate possession and sale of marijuana could decline to enforce legislation purporting to ban such activity for that reason alone, and without regard to the content of state or local laws.

If a President took and announced such a position, one could accurately state that such possession and sale was legal in those states (and only those states) that chose not to regulate such conduct. Even here, however, such conduct would only be legal outside the courts, as judges would still be bound by the Supreme Court's determination in Raich. Thus, a Presidential declaration that such regulation exceeded the power of Congress would not prevent judges from treating such conduct as unlawful when adjudicating cases properly before them. So, for instance, a court could decline to enforce a contract for the purchase and sale of marijuana, in the same way that it would decline to enforce a contract in restraint of trade. See Dr. Miles v. John D. Park & Sons, 220 U.S. 373 (1910) (holding that contract violating the Sherman Act was not enforceable and thus could not support a diversity action for tortious interference with contract). Moreover, if an insurance contract limited coverage to accidents resulting from "lawful activities," a court could hold that the company need not pay compensation to an insured injured in the course of conducting the business of selling marijuana.

It must be emphasized that the scenario just described is purely hypothetical. After all, the Obama Administration has articulated and defended an extremely broad conception of Congressional power. Indeed, the Administration has even claimed that Congress possesses the authority to compel individuals to purchase health insurance against their will, a vision that the Supreme Court thankfully and properly rejected. Unless and until this Administration or a future Administration adopts a less expansive (and more accurate) conception of the Commerce Power, the possession and sale of marijuana will remain entirely illegal, yes, even in Colorado.

In a recent order, Justice Sonia Sotomayor temporarily enjoined application of certain regulations issued by the Obama Administration to implement the so-called Affordable Care Act. The regulations in question would require the Little Sisters of the Poor and similar organizations to pay massive fines or authorize their insurance carriers to provide free contraception to their female employees. (There is apparently no similar requirement that employers provide contraception to male employees.) In a brief filed with Justice Sotomayor, the Little Sisters explained that the organization's insurance carrier is itself a Catholic organization and that the regulations at issue would impose annual fines of $2.5 million on "an organization that cares for 69 elderly people and has an annual budget of $6 million." (Lyle Dennison, of SCOTUSBLOG, has additional details about the case here.) The Sisters argued that the requirement in question violates the Religious Freedom Restoration Act, which prohibits agencies of the U.S. Government from issuing regulations that place substantial burdens on the free exercise of religious belief unless such burdens are narrowly tailored to serve a compelling state interest.

In a U.S. New and World Report blog post entitled "The Catholic Supreme Court's War on Women," one Jaimie Stiehm claims that Justice Sotomayor's order imposed her Catholic beliefs on American women. In particular, the post claims that "Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence." The post also opined that "Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions." The post also suggests that Justice Sotomayor has allied herself with other Catholic Justices who, the post says, possess a "clear religious bias when it comes to women's rights and liberties," that the result reflects "Vatican Hegemony." The post also claims, without offering any evidence, that "meddlesome American Roman Catholic Archbishops are bound to be involved." Such Archbishops, the post says, have a "penchant for control" whose "principal target for years on end has been squelching women and girls."

Any claim that Justice Sotomayor, the Sisters or Archbishops who may agree with the Sisters' position have thereby imposed their religious beliefs on others does not withstand even cursory analysis. As noted above, the regulations at issue would require one Catholic organization to violate its religious beliefs by authorizing another Catholic organization to subsidize practices that violate such beliefs. Justice Sotomayor's order simply prevented the Obama Administration from compelling the Sisters to violate their religion, thereby protecting the principle of religious liberty, recognized by RFRA, from abridgment. RFRA, in turn, simply implemented the ancient Madisonian principle that each individual is free to determine the duty he or she owes to the Creator and that the discharge of this duty "is precedent, both in order of time and in degree of obligation, to the claims of Civil Society." (See James Madison, Memorial and Remonstrance Against Religious Assessments)

Some employees of the Sisters may well wish to employ contraception. However, neither RFRA, Justice Sotomayor's order or the Sisters have sought to prevent a single person from exercising that choice. To be sure, the Sisters have declined to subsidize this practice, in the same way that employers fail to subsidize any number of practices. (Consider, for instance, the employer that declines to subsidize her employee's consumption of food or purchase of clothing or shelter.) Moreover, Justice Sotomayor, applying RFRA, has prevented the Obama Administration from coercing the Sisters and other Catholic organizations to provide such subsidies. However, as previously explained on this blog, declining to subsidize another's medical care does not "impose" one's beliefs on others simply because the refusal reflects the employer's religious beliefs. Instead, such a refusal leaves the Sisters' employees entirely to free to purchase as much medical care of whatever sort that they wish.

It should be noted that this is not the first time that Justice Sotomayor has rejected the Obama Administration's efforts to restrict religious freedom. In Hosana Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (2012), all nine Justices rejected the Obama Administration's claim that the Religion Clauses of the First Amendment do not prevent Congress from imposing ministers upon Churches against their will. There Justice Sotomayor joined the majority opinion of Chief Justice Roberts which, among other things, criticized the Obama Administration's "remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers." Any suggestion that Justice Sotomayor imposed her religious views in either case is equally remarkable --- and wrong.

Update (January 28, 2014): The Supreme Court, without recorded dissent, has itself issued an order enjoining enforcement of the statute's contraception mandate, pending resolution of the Sisters' challenge. The order, which can be found here, provides that the Sisters and their religious insurance carrier need not comply with the new regulations, so long as they notify the Department of Health and Human services, in writing, that "they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services." The order expressly provides that the Sisters "need not use the form prescribed by the Government and need not send copies to third-party administrators." As a result, the Sisters need not authorize their insurance carrier to provide coverage that violates the Sisters' religious belief. Any supposed "War on Women," it seems, has become unanimous.

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Bishop James Madison

Portrait of Bishop James Madison

Who Was Bishop Madison ?

Bishop James Madison, the cousin of our nation's fourth President, was the President of the College of William and Mary from 1777 until his death in 1812. Prior to appointment as President, Madison served as a professor of natural philosophy and mathematics. During the Revolutionary War, Madison organized a militia company of students. William and Mary claims that Madison was the first professor of Political Economy in the United States. His lectures on the subject relied upon Adam Smith's Wealth of Nations, published in 1776. Along with Thomas Jefferson, Madison was instrumental in founding the School of Law at William and Mary, appointing George Wythe as William and Mary's first Professor of Law and Police.